The Taxation Laws (Amendment) Ordinance, 2019

 

  • The Taxation Laws (Amendment) Ordinance, 2019 was promulgated on September 20, 2019. The Ordinance amends the Income Tax Act, 1961, and the Finance (No. 2) Act, 2019.  The Ordinance provides domestic companies with an option to opt for lower tax rates, provided they do not claim certain deductions.  It also amends certain provisions regarding levy of surcharge on income from capital gains.
     
  • Income tax rate for domestic companies: Currently, domestic companies with annual turnover of up to Rs 400 crore pay income tax at the rate of 25%.  For other domestic companies, the tax rate is 30%.  The Ordinance provides domestic companies with an option to pay income tax at the rate of 22%, provided they do not claim certain deductions under the Income Tax Act.  These include deductions provided for: (i) newly established units in Special Economic Zones, (ii) investment in new plant or machinery in notified backward areas, (iii) expenditure on scientific research, agriculture extension, and skill development projects, (iv) depreciation of new plant or machinery (in certain cases), and (v) various other provisions in the Income Tax Act (under Chapter VI-A, except the deductions provided for employment of new employees).
     
  • Income tax rate for new domestic manufacturing companies: The Ordinance provides new domestic manufacturing companies with an option to pay income tax at the rate of 15%, provided they do not claim certain deductions under the Act (as specified above).  New
    manufacturing companies include companies which will be set up and registered after September 30, 2019, and will start manufacturing before April 1, 2023.  These will not include companies: (i) formed by splitting up or reconstruction of an existing business, (ii) engaged in any business other than manufacturing, and (iii) using any plant or machinery previously used in India (except under certain specified conditions).
     
  • Applicability of new tax rates: Companies can choose to opt for the new tax rate (15% or 22%, whichever is applicable) starting the financial year 2019-20 (i.e. assessment year 2020-21).  Once a company has exercised this option, the chosen provision will apply for all the subsequent years.
     
  • Surcharge on tax payable at new rates: Currently, domestic companies with income between one crore rupees and Rs 10 crore are required to pay a 7% surcharge on tax.  Those with an income of more than Rs 10 crore are required to pay a 12% surcharge on tax.  The Ordinance provides that companies opting for the new tax rates (15% or 22%, whichever is applicable) are required to pay a 10% surcharge on the tax payable by them under the respective provisions.
     
  • Minimum Alternate Tax (MAT): The Ordinance reduces the MAT rate from 18.5% to 15% with effect from the financial year 2019-20.  MAT rate is the minimum percentage of profit that a company is required to pay as tax, in case its tax liability falls below this threshold after claiming deductions under the Act.  The Ordinance specifies that MAT will not apply to the domestic companies opting to pay tax at the new rates.
     
  • Surcharge on capital gains: Tax and surcharge are levied on capital gains arising from transfer of securities in certain cases.  These include: (i) capital gains to foreign institutional investors from securities (other than the units purchased in foreign currency), and (ii) capital gains to individuals, body of individuals, and association of persons from certain short-term and long-term securities liable to securities transaction tax (i.e., equity shares in companies and units of equity oriented funds and business trusts).
     
  • In these cases, surcharge is applicable at the rate of: (i) 10% of tax, for income between Rs 50 lakh and one crore rupees, (ii) 15% of tax, for income between one crore rupees and two crore rupees, (iii) 25% of tax, for income between two crore rupees and five crore rupees, and (iv) 37% of tax, for income more than five crore rupees.  The Ordinance allows deduction of capital gains (as specified above) from the total income when the total income exceeds two crore rupees.  Further, in such cases, after deducting capital gains, if the revised total income is less than or equal to two crore rupees, surcharge will be levied at a flat rate of 15% of tax.
     
  • Tax on buy-back of shares: Buy-back of shares refers to a company purchasing its own shares.  When such purchase generates income for the company (because of an increased share price in comparison to the original issue price), the company is required to pay 20% tax on the income so generated.  The Ordinance exempts certain listed companies from this requirement.  These are companies which made a public announcement regarding buy-back of shares before July 5, 2019 (as per the provisions of the Securities and Exchange Board of India (Buy-back of Securities) Regulations, 2018).

Bill Details

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Inter-caste marriage does not change caste for reservation b

Inter-caste marriage does not change caste for reservation benefits: Madras HC

 

In a judgment passed last month, the Madras High Court has clarified that marrying a person of scheduled caste does not entitle one to claim a change in caste for the purpose of reservation. A Division Bench of Justices R Subbiah and C Saravanan passed the judgment to this effect, while observing that,

"By changing one’s faith or by marrying a person belonging to another community, one does not change his or her community."

The Court, therefore, found that scheduled caste reservation benefits could not be availed by an employee by citing her marriage to a member of the Hindu Adi Dravida caste, a Scheduled Caste.

Factual Background 

The Court was dealing with an appeal filed by the Oriental Insurance company challenging a 2015 single judge order passed in favour of a woman who had been appointed as an assistant typist in the company against a post reserved for Scheduled Caste candidates.

The woman employee originally belonged to the Vanniya Kula Shatriya community, a backward class community in Tamil Nadu. However, after her marriage to a person belonging to the Hindu Adi Dravida Scheduled Caste, she obtained a Scheduled Caste community certificate for herself from the Tashildar, Fort Tondiarpet in 1977. The certificate had been issued on an interpretation of a Government letter regarding the same issued in 1976.

While applying for the job at Oriental Insurance, the employee had declared that she belonged to the Hindu Adi Dravida Scheduled Caste community on the strength of the 1977 caste certificate. She was appointed to the post in 1979. In 1990, the Collector issued a show cause notice to cancel her community certificate. Later, he issued an order cancelling the certificate as well. This decision was upheld by a Special Commissioner on appeal.

Subsequently, a charge memo accusing the employee of misconduct was issued by Oriental Insurance, accusing her of misrepresentation at the time of appointment. A writ petition filed against this charge memo was initially dismissed by the High Court. An appeal filed against this order was disposed of in 2009 with the observation that the state has no jurisdiction to declare that non-SC/ST on marriage SC/ST will be deemed to be SC/ST after marriage. 

While passing the 2009 order, the High Court also observed that the employee had not committed any fraud or made any misrepresentation at the time of her appointment. The Court left it open for the competent authority to decide on whether the proceedings initiated against her should be dropped in view of this observation.

However, the order prompted the revival of the 1992 disciplinary proceedings initiated against the employee. A writ petition filed in 2002 to quash the charge memo against the employee was disposed of with observation that she can submit an explanation and that no writ can be issued at the inquiry stage.

In 2012, an inquiry officer concluded that the employee was guilty of hiding material facts and that she had failed to inform the office regarding the cancellation of the community certificate. Thereafter, an order was passed dismissing the employee from the company.

This dismissal order was challenged before a single judge of the High Court in 2013. In the meanwhile, in March 2013, the employee had reached the the age of superannuation. However, she was told that her entitlement to gratuity, provident fund etc. would be subject to the final outcome of her 2013 writ petition.  In 2015, the single judge ruled in the employee's favour upon finding that there was no misrepresentation on her part.

This ruling, in turn, was challenged by the Oriental Insurance company before a Division Bench of the High Court.

What the Division Bench held

The Division Bench noted, firstly, that the Supreme Court called for the verification of caste certificates at least six months prior to appointment to a job reserved for the particular caste in Kumari Madhuri Patil v. Commr. Tribal Development. As far as this principle was concerned, the Court observed that there was no violation in the present case

"In the present case, verification was done even before the 1st respondent was appointed. The Tahsildar, Fort Tondiarpet vide letter dated 13.11.1978 in a reply to a query from the District Employment Officer vide letter dated 12.12.1977 had also confirmed that the Hindu Adi Dravida Scheduled Caste Community was issued to the 1st respondent in line with the order in Government Letter No. MS 493/BCI/76 dated 11.6.1976. This verification was done prior to the appointment of the 1st respondent by the Appellant during 1977. The 1st respondent was thereafter appointed later vide letter of appointment dated 22 1.1979."

However, the same Supreme Court ruling had also held that if the certificate obtained is false, the appointment made on its basis is liable to be canceled. In view of this ruling, the High Court observed that in the case before it,

"... there was no necessity to cause re-verification of the community certificate once the issue had attained finality. However, re-verification was done which unfortunately led to the cancellation of the community certificate on 20.08.1991 by the Tahsildar, For-Tondiarpet Taluk...

.. As per the decision of the Hon’ble Supreme Court in Kumari Madhuri Patil v. Commr. Tribal Development, (1994) 6 SCC 241, the 1st respondent was no longer entitled to remain in service. The community certificate was canceled as early as 20.08.1991. The 1st respondent has managed to work till the age of superannuation. She has enjoyed the benefit of reservation which was not available to her."

Pertinently, the High Court also emphasised that government letters would not be of any help in claiming reservation benefits, if such letter is contrary to the Constitutional norms, as laid down in Food Corporation of India v. Jagdish Balaram Bahira. In the case before it, the High Court noted that,

"The certificate was obtained based on a clarification of the State Government which has been held to be not applicable to the 1st respondent. 

Though the 1st respondent has not played fraud while obtaining the aforesaid community certificate, the fact remains that she is not a person who was eligible for appointment against the post reserved for Scheduled case/Scheduled Tribe. Scheduled Caste Adi Dravidar Community certificate ought not to have been issued to the petitioner by the Tahsildar Tandiarpet Taluk."

In view of these observations, the Court proceeded to rule against the employee, holding that,

"We are therefore unable to come to the rescue of the 1st respondent. After cancellation of the community certificate, the 1st respondent could not have continued to be in service."

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Global disabling of Social Media posts: Delhi HC refuses sta

 Global disabling of Social Media posts: Delhi HC refuses stay on order, but no contempt for non-compliance


The Delhi High Court today admitted Facebook Inc's appeal against its order holding that social media platforms like Facebook, Google, Twitter and YouTube were bound to globally disable and block any offending content uploaded from within India.

The order under challenge was passed last week by a Single Judge Bench of Justice Prathiba M Singh in a suit by Baba Ramdev and Patanjali Ayurved Ltd. against the social media platforms.

It was the plaintiff's grievance that various defamatory remarks based on a book titled Godman to Tycoon – the Untold Story of Baba Ramdev were being disseminated across the social media platforms. The plaintiff had thus sought a decree of permanent and mandatory injunction along with damages.

Subsequently, Justice Singh had passed an order directing the social media platforms to take down, remove, block, restrict/disable access to offending content uploaded from India, on a global basis as well.

When the appeal filed by Facebook was called out for hearing today, a Division Bench of Justice S Muralidhar and Talwant Singh instantly admitted it, and remarked,

"We'll have to hear it. No Court has decided it (the issues) yet."

The Division Bench, however, refused to stay Justice Singh's order.

It nonetheless recorded the statement made by the counsel for Ramdev and Patanjali that no contempt action would be initiated against Facebook for failing to implement the Single Judge Bench's order of global injuction.

"In view of the above statement..no contempt will be taken..."

With the consent of the parties, the Court listed the matter for arguments on December 7.

In its order passed on October 23, Justice Singh had held that if information or data was uploaded on a computer network from within India, the platforms would be bound to remove it and disable it from the entire computer network in terms of Section 79 of the Information Technology Act, 2002. 

In its appeal, Facebook has argued that the Information Technology Act's extra territorial jurisdiction was limited to offences listed in the Act or its violations, and thus would not apply in the present case.

Facebook has further contended that Section 79 did not empower the Court to authorize a global injunction.

Referring to facts at hand, Facebook has stated that the Single Judge Bench failed to establish good and sufficient reasons to violate the principles of international comity and national sovereignty in a defamation case.

It is also pleaded that the order was void due to the absence of necessary parties i.e. the uploader of the allegedly offending content.

Facebook was represented by Senior Advocate Kapil Sibal and a team from Shardul Amarchand Mangaldas headed by Partner Tejas Karia.

Ramdev and Patanjali were represented by Senior Advocates Dayan Krishnan, Darpan Wadhwa and Advocate Satvik Varma along with a team from Athena Legal headed by Simranjeet Singh.

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The Prohibition of Electronic Cigarettes (Production, Manu

 

  • The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage, and Advertisement) Ordinance, 2019 was promulgated on September 18, 2019. The Ordinance prohibits the production, trade, storage, transport, and advertisement of electronic cigarettes.
     
  • Electronic cigarettes: The Ordinance defines electronic cigarettes (e-cigarettes) as electronic devices that heat a substance (natural or artificial) to create vapour for inhalation.  These e-cigarettes may contain nicotine and flavours, and include all forms of electronic nicotine delivery systems, heat-not-burn products, e-hookahs, and other similar devices.
     
  • Banning of e-cigarettes: The Ordinance prohibits the production, manufacture, import, export, transport, sale, distribution and advertisement of e-cigarettes in India.  Any person who contravenes these provisions will be punishable with imprisonment of up to one year, or a fine of up to one lakh rupees, or both.  For any subsequent offence, the person will be punishable with imprisonment of up to three years, and a fine of up to five lakh rupees.
     
  • Storage of e-cigarettes: No person is allowed to use any place for the storage of any stock of e-cigarettes.  If any person stores any stock of e-cigarettes, he will be punishable with an imprisonment of up to six months, or a fine of up to Rs 50,000, or both. 
     
  • Once the Ordinance comes into force (i.e., September 18, 2019), the owners of existing stocks of e-cigarettes will have to declare and deposit these stocks at the nearest office of an authorised officer.  Such an authorised officer may be a police officer (at least at the level of a sub-inspector), or any other officer as notified by the central or state government.
     
  • Powers of authorised officers: If an authorised officer believes that any provision of the Ordinance has been contravened, he may search any place where trade, production, storage, or advertising of e-cigarettes is being undertaken.  The authorised officer can seize any record or property connected to e-cigarettes found during the search.  Further, he may take the person connected to the offence into custody.
     
  • If the property or records found during the search cannot be seized, the authorised officer may make an order to attach such property, stocks or records.
     
  • Offences by companies: Under the Ordinance, if an offence is committed by a company, then the persons in-charge of the company will be held liable.  Further, if it is proved that the offence was committed with the consent of, or due to neglect on the part of any director, manager or secretary, then they will be held liable and punished accordingly.


Bill details

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No More BS-IV Vehicles in India from 1st Apr'2020

 

The Supreme Court of India has ruled that no Bharat Stage IV vehicle shall be sold across the country with effect from April 1, 2020. Instead, the Bharat Stage VI (or BS-VI) emission norm would come into force from April 1, 2020, across the country. A three-judge bench ruled that the need of the hour was to move to a cleaner fuel. In 2016, the Centre announced that the country would skip the BS-V norms altogether and adopt BS-VI norms by 2020.

In light of the same, India Yamaha Motor has announced that the company will start rolling out BS-VI compliant models of its vehicles in a phased manner starting from November 2019. It also added that the imminent shift towards the new norms will subject the models to a price hike of 10 - 15 per cent on average depending upon the product features. The company, however, will standardize offsetting benefits in selected two-wheeler models like ‘Side stand switch’. This feature prevents the engine to start till the side stand is withdrawn completely.

Supreme Court Order

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The Jammu and Kashmir Reorganisation Bill, 2019

 The Jammu and Kashmir Reorganisation Bill, 2019 was introduced in Rajya Sabha on August 5, 2019 by the Minister of Home Affairs, Mr. Amit Shah. The Bill provides for reorganisation of the state of Jammu and Kashmir into the Union Territory of Jammu and Kashmir and Union Territory of Ladakh.
 

  • Reorganisation of Jammu and Kashmir: The Bill reorganises the state of Jammu and Kashmir into: (i) the Union Territory of Jammu and Kashmir with a legislature, and (ii) the Union Territory of Ladakh without a legislature.  The Union Territory of Ladakh will comprise Kargil and Leh districts, and the Union Territory of Jammu and Kashmir will comprise the remaining territories of the existing state of Jammu and Kashmir. 
     
  • Lieutenant Governor: The Union Territory of Jammu and Kashmir will be administered by the President, through an administrator appointed by him known as the Lieutenant Governor.  The Union Territory of Ladakh will be administered by the President, through a Lieutenant Governor appointed by him. 
     
  • Legislative Assembly of Jammu and Kashmir: The Bill provides for a Legislative Assembly for the Union Territory of Jammu and Kashmir.  The total number of seats in the Assembly will be 107.  Of these, 24 seats will remain vacant on account of certain areas of Jammu and Kashmir being under the occupation of Pakistan.  Further, seats will be reserved in the Assembly for Scheduled Castes and Scheduled Tribes in proportion to their population in the Union Territory of Jammu and Kashmir.  In addition, the Lieutenant Governor may nominate two members to the Legislative Assembly to give representation to women, if they are not adequately represented.     
     
  • The Assembly will have a term of five years, and the Lieutenant Governor must summon the Assembly at least once in six months. The Legislative Assembly may make laws for any part of the Union Territory of Jammu and Kashmir related to: (i) any matters specified in the State List of the Constitution, except “Police” and “Public Order”, and (ii) any matter in the Concurrent List applicable to Union Territories.  Further, Parliament will have the power to make laws in relation to any matter for the Union Territory of Jammu and Kashmir.
     
  • Council of Ministers: The Union Territory of Jammu and Kashmir will have a Council of Ministers of not more than ten percent of the total number of members in the Assembly.  The Council will aide and advise the Lieutenant Governor on matters that the Assembly has powers to make laws.  The Chief Minister will communicate all decisions of the Council to the Lieutenant Governor.        
     
  • High Court: The High Court of Jammu and Kashmir will be the common High Court for the Union Territories of Ladakh, and Jammu and Kashmir.  Further, the Union Territory of Jammu and Kashmir will have an Advocate General to provide legal advice to the government of the Union Territory.   
     
  • Legislative Council: The Legislative Council of the state of Jammu and Kashmir will be abolished.  Upon dissolution, all Bills pending in the Council will lapse.  
     
  • Advisory Committees: The central government will appoint Advisory Committees, for various purposes, including: (i) distribution of assets and liabilities of corporations of the state of Jammu and Kashmir between the two Union Territories, (ii) issues related to the generation and supply of electricity and water, and (iii) issues related to the Jammu and Kashmir State Financial Corporation.  These Committees must submit their reports within six months to the Lieutenant Governor of Jammu and Kashmir, who must act on these recommendations within 30 days. 
     
  • Extent of laws: The Schedule lists 106 central laws that will be made applicable to Union Territories of Jammu and Kashmir and Ladakh on a date notified by the central government.  These include the Aadhaar Act, 2016, the Indian Penal Code, 1860, and the Right to Education Act, 2009.  Further, it repeals 153 state laws of Jammu and Kashmir.  In addition, 166 state laws will remain in force, and seven laws will be applicable with amendments.  These amendments include lifting of prohibitions on lease of land to persons who are not permanent residents of Jammu and Kashmir.


Bill Details

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The Chit Funds (Amendment) Bill, 2019

 The Chit Funds (Amendment) Bill, 2019 was introduced in Lok Sabha on August 5, 2019. The Bill seeks to amend the Chit Funds Act, 1982.  The 1982 Act regulates chit funds, and prohibits a fund from being created without the prior sanction of the state government.  Under a chit fund, people agree to pay a certain amount from time to time into a fund.  Periodically, one of the subscribers is chosen by drawing a chit to receive the prize amount from the fund.  
 

  • Names for a chit fund: The Act specifies various names which may be used to refer to a chit fund. These include chit, chit fund, and kuri.  The Bill additionally inserts ‘fraternity fund’ and ‘rotating savings and credit institution’ to this list.
     
  • Substitution of terms: The Act defines certain terms in relation to chit funds. It defines: (a) ‘chit amount’ as the sum of subscriptions payable by all the subscribers of a chit; (b) ‘dividend’ as the share of the subscriber in the amount kept apart for running the chit; and (c) ‘prize amount’ as the difference between chit amount and the amount kept apart for running the chit.  The Bill changes the names of these terms to ‘gross chit amount’, ‘share of discount’ and ‘net chit amount’, respectively.
     
  • Presence of subscribers through video-conferencing: The Act specifies that a chit will be drawn in the presence of at least two subscribers. The Bill seeks to allow these subscribers to join via video-conferencing.
     
  • Foreman’s commission: Under the Act, the ‘foreman’ is responsible for managing the chit fund. He is entitled to a maximum commission of 5% of the chit amount.  The Bill seeks to increase the commission to 7%.  Further, the Bill allows the foreman a right to lien against the credit balance from subscribers.
     
  • Aggregate amount of chits: Under the Act, chits may be conducted by firms, associations or individuals. The Act specifies the maximum amount of chit funds which may be collected.  These limits are: (i) one lakh rupees for chits conducted by individuals, and for every individual in a firm or association with less than four partners, and (ii) six lakh rupees for firms with four or more partners.  The Bill increases these limits to three lakh rupees and 18 lakh rupees, respectively. 
     
  • Application of the Act: Currently, the Act does not apply to: (i) any chit started before it was enacted, and (ii) any chit (or multiple chits being managed by the same foreman) where the amount is less than Rs 100. The Bill removes the limit of Rs 100, and allows the state governments to specify the base amount over which the provisions of the Act will apply. 


Bill Details

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Muslim Women (Protection of Rights on Marriage) Bill, 2019

The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on June 21, 2019.  It replaces an Ordinance promulgated on February 21, 2019. 
 

  • The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.  It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.  Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
     
  • Offence and penalty:  The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine.  (A cognizable offence is one for which a police officer may arrest an accused person without warrant.)  The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage. 
     
  • The Bill provides that the Magistrate may grant bail to the accused.  The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
     
  • The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared).  Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute.  The terms and conditions of the compounding of the offence will be determined by the Magistrate.  
     
  • Allowance:  A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children.  The amount of the allowance will be determined by the Magistrate.
     
  • Custody:  A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.

for More Details  Bill Details

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The Companies (Amendment) Bill, 2019

 The Companies (Amendment) Bill, 2019 was introduced in Lok Sabha on July 25, 2019 by the Minister of Finance, Ms. Nirmala Sitharaman. It amends the Companies Act, 2013. 
 

  • Issuance of dematerialised shares:Under the Act, certain classes of public companies are required to issue shares in dematerialised form only.  The Bill states this may be prescribed for other classes of unlisted companies as well.  
     
  • Re-categorisation of certain Offences: The 2013 Act contains 81 compoundable offences punishable with fine or fine or imprisonment, or both. These offences are heard by courts. The Bill re-categorizes 16 of these offences as civil defaults, where adjudicating officers (appointed by the central government) may now levy penalties instead. These offences include: (i) issuance of shares at a discount, and (ii) failure to file annual return.  Further, the Bill amends the penalties for some other offences.
     
  • Corporate Social Responsibility (CSR): Under the Act, if companies which have to provide for CSR, do not fully spent the funds, they must disclose the reasons for non-spending in their annual report.  Under the Bill, any unspent annual CSR funds must be transferred to one of the funds under Schedule 7 of the Act (e.g., PM Relief Fund) within six months of the financial year.
     
  • However, if the CSR funds are committed to certain ongoing projects, then the unspent funds will have to be transferred to an Unspent CSR Account within 30 days of the end of the financial year, and spent within three years. Any funds remaining unspent after three years will have to be transferred to one of the funds under Schedule 7 of the Act.  Any violation may attract a fine between Rs 50,000 and Rs 25,00,000 and every defaulting officer may be punished with imprisonment of up to three years or fine between Rs 50,000 and Rs 25,00,000, or both. 
     
  • Debarring auditors: Under the Act, the National Financial Reporting Authority debar a member or firm from practising as a Chartered Accountant for a period between six months to 10 years, for proven misconduct.  The Bill amends the punishment to provide for debarment from appointment as an auditor or internal auditor of a company, or performing a company’s valuation, for a period between six months to 10 years.
     
  • Commencement of business: The Bill states that a company may not commence business, unless it (i) files a declaration within 180 days of incorporation, confirming that every subscriber to the Memorandum of the company has paid for the shares agreed to be taken by him, and (ii) files a verification of its registered address with the RoC within 30 days of incorporation.  If it fails to comply with these provisions and is found not to be carrying out business, its name of the company may be removed from the Register of Companies. 
     
  • Registration of charges: The Act requires companies to register charges (e.g., mortgages) on their property within 30 days of creation of charge, extendable upto 300 days with the permission of the RoC.  The Bill changes the deadline to 60 days (extendable by 60 days). 
     
  • Change in approving authority: Under the Act, change in period of financial year for a company associated with a foreign company, has to be approved by the National Company Law Tribunal.  Similarly, any alteration in the incorporation document of a public company which has the effect of converting it to a private company, has to be approved by the Tribunal.  Under the Bill, these powers have been transferred to central government. 
     
  • Compounding: Under the Act, a regional director can compound (settle) offences with a penalty of up to five lakh rupees.  The Bill increases this ceiling to Rs 25 lakh. 
     
  • Bar on holding office: Under the Act, the central government or certain shareholders can apply to the NCLT for relief against mismanagement of the affairs of the company.  The Bill states that in such a complaint, the government may also make a case against an officer of the company on the ground that he is not fit to hold office in the company, for reasons such as fraud or negligence.  If the NCLT passes an order against the officer, he will not be eligible to hold office in any company for five years. 
     
  • Beneficial ownership: If a person holds beneficial interest of at least 25% shares in a company or exercises significant influence or control over the company, he is required to make a declaration of his interest.  The Bill requires every company to take steps to identify an individual who is a significant beneficial owner and require their compliance under the Act.

For more Details Bill Details

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Information Technology Act 2000,amendment act 2008

 INFORMATION TECHNOLOGY ACT 2000


The Information Technology Act, 2000 or ITA, 2000 or IT Act, was notified on October 17, 2000. It is the law that deals with cybercrime and electronic commerce in India. In this article, we will look at the objectives and features of the Information Technology Act, 2000. 


In 1996, the United Nations Commission on International Trade Law (UNCITRAL) adopted the model law on electronic commerce (e-commerce) to bring uniformity in the law in different countries.


Further, the General Assembly of the United Nations recommended that all countries must consider this model law before making changes to their own laws. India became the 12th country to enable cyber law after it passed the Information Technology Act, 2000.

 

While the first draft was created by the Ministry of Commerce, Government of India as the ECommerce Act, 1998, it was redrafted as the ‘Information Technology Bill, 1999’, and passed in May 2000.


Objectives of the Act

The Information Technology Act, 2000 provides legal recognition to the transaction done via electronic exchange of data and other electronic means of communicationor electronic commerce transactions.

This also involves the use of alternatives to a paper-based method of communication and information storage to facilitate the electronic filing of documents with the Government agencies.

Further, this act amended the Indian Penal Code 1860, the Indian Evidence Act 1872, the Bankers’ Books Evidence Act 1891, and the Reserve Bank of India Act 1934. The objectives of the Act are as follows:

  1. Grant legal recognition to all transactions done via electronic exchange of data or other electronic means of communication or e-commerce, in place of the earlier paper-based method of communication.
  2. Give legal recognition to digital signatures for the authentication of any information or matters requiring legal authentication
  3. Facilitate the electronic filing of documents with Government agencies and also departments
  4. Facilitate the electronic storage of data
  5. Give legal sanction and also facilitate the electronic transfer of funds between banks and financial institutions
  6. Grant legal recognition to bankers under the Evidence Act, 1891 and the Reserve Bank of India Act, 1934, for keeping the books of accounts in electronic form.

Features of the Information Technology Act, 2000

  1. All electronic contracts made through secure electronic channels are legally valid.
  2. Legal recognition for digital signatures.
  3. Security measures for electronic records and also digital signatures are in place
  4. A procedure for the appointment of adjudicating officers for holding inquiries under the Act is finalized
  5. Provision for establishing a Cyber Regulatory Appellant Tribunal under the Act. Further, this tribunal will handle all appeals made against the order of the Controller or Adjudicating Officer.
  6. An appeal against the order of the Cyber Appellant Tribunal is possible only in the High Court
  7. Digital Signatures will use an asymmetric cryptosystem and also a hash function
  8. Provision for the appointment of the Controller of Certifying Authorities (CCA) to license and regulate the working of Certifying Authorities. The Controller to act as a repository of all digital signatures.
  9. The Act applies to offences or contraventions committed outside India
  10. Senior police officers and other officers can enter any public place and search and arrest without warrant
  11. Provisions for the constitution of a Cyber Regulations Advisory Committee to advise the Central Government and Controller.

Applicability and Non-Applicability of the Act

Applicability

According to Section 1 (2), the Act extends to the entire country, which also includes Jammu and Kashmir. In order to include Jammu and Kashmir, the Act uses Article 253 of the constitution. Further, it does not take citizenship into account and provides extra-territorial jurisdiction.

Section 1 (2) along with Section 75, specifies that the Act is applicable to any offence or contravention committed outside India as well. If the conduct of person constituting the offence involves a computer or a computerized system or network located in India, then irrespective of his/her nationality, the person is punishable under the Act.

Lack of international cooperation is the only limitation of this provision.

Non-Applicability

According to Section 1 (4) of the Information Technology Act, 2000, the Act is not applicable to the following documents:

  1. Execution of Negotiable Instrument under Negotiable Instruments Act, 1881, except cheques.
  2. Execution of a Power of Attorney under the Powers of Attorney Act, 1882.
  3. Creation of Trust under the Indian Trust Act, 1882.
  4. Execution of a Will under the Indian Succession Act, 1925 including any other testamentary disposition
    by whatever name called.
  5. Entering into a contract for the sale of conveyance of immovable property or any interest in such property.
  6. Any such class of documents or transactions as may be notified by the Central Government in the Gazette.


For More Detgails :  IT Act 2000  & IT Amendment Act 2008

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The Motor Vehicles (Amendment) Bill, 2019

The Motor Vehicles (Amendment) Bill, 2019


Most of the provisions of the Bill have been borrowed from the previous National Identification Authority of India Bill, 2010. The major difference is that the three-member committee called the Identity Review Committee of the previous bill was removed in the new bill.[18] Also, the section 8 of Aadhaar Act is significantly different from that of NIAI bill, 2010. While the NIAI bill allowed the authentication limited to the biometric match only with Yes/No option, the Aadhaar Act allows the requesting agency/person to ask for other information too, pertaining to the person’s identity.[19]

Chapter I: Preliminary

The Clause 2 (g) defines "biometric information" as photograph, finger print, iris scan, or "other such biological attributes" of an individual. The Clause 2 (k) defines "demographicinformation" as name, date of birth, address and "other relevant information" of an individual. It explicitly excludes race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history. The Clause 2 (v) defines "resident" as an individual who has resided in India for a period or periods amounting in all to 182 days or more in the 12 months immediately preceding the date of application for enrolment.[20]

Chapter II: Enrolment[

The Clause 3 (1) states that every resident is entitled to obtain an Aadhaar number by submitting their biometric and demographic information. The central government may however in future require other categories of individuals to enrol by releasing a notification. According to Clause 3 (2), at the time of registration the enrolling agency must inform the resident about the manner in which the data will be used, with whom it will be shared and procedure of access. The UIDAI will issue an Aadhaar number to the resident after verifying the data. According to Clause 4, it should be unique and random. The Clause 6 states that the UIDAI may require Aadhaar number holders to submit additional biometric and demographic information, or update the information in the future.[20] 1058/13797/48987

Chapter III: Authentication

The Clause 7 states that the central or state government may require a person to possess an Aadhaar number if he/she is receiving some subsidy. If they do not possess an Aadhaar number, they will be required to apply for other, in meantime the government will provide them the subsidy using an alternate mean of identification. According to Clause 8, UIDAI may perform verification of Aadhaar for other private and public agencies on request in exchange for a fee. The requesting must obtain the consent of the Aadhaar holder for verification, and inform him/her of nature of the information that will be shared upon verification. The Clause 8 (4) states that UIDAI may share identity information, but it cannot share the biometric information. The Clause 9 states that Aadhaar is not a proof of citizenship or domicile.[20]

Chapter IV: Unique Identification Authority of India

The Chapter IV details the functions and powers of the UIDAI. The Clause 23 (2) states that the UIDAI has the power to specify the demographic and biometric information that must be collected for registration. It can issue Aadhaar numbers to residents and perform verifications. It can also specify the subsidies and services for which Aadhaar will be required.[20]

The Clause 12 states that the UIDAI will consist of a chairperson, two part-time members and a chief executive officer. The Clause 13 states the chairperson and members must have experience and knowledge of at least 10 years in matters relating to technology, governance, law, development, economics, finance, management, public affairs or administration.[20]

Chapter V: Grants, Accounts and Audit and Annual Report[

The Clause 25 states that any fees collected and revenue generated by the UIDAI will be deposited in the Consolidated Fund of India. The Clause 27 (2) states that the UIDAI must submit an annual report to the central government detailing its activities of the past year, revenues and expenditures of the past year, and plans for the upcoming year.[20]

Chapter VI: Protection of Information

The Clause 28 (1) states that the UIDAI must ensure the security of identity information and authentication records. The authentication records has been as "record of the time of authentication and identity of the requesting entity and the response provided" in Clause 2 (d). The Clause 32 states that the UIDAI must maintain the authentication records for the specified period. The Aadhaar number holder may access his authentication records subject to regulation. The UIDAI is not required to maintain the record of the purpose of authentication.[20]

The Clause 33 (1) states that a District Judge or higher court may force the UIDAI to reveal a person's identity information, i.e. Aadhaar number, photograph and demographic information, and authentication records, but not the core biometric information. The Clause 33 (2) states that an official with the rank of Joint Secretary or higher may access a person's identity information including core biometric information, if the official has an order issued in the interest of national security by the central government.[20]

Chapter VII: Offences and Penalty

The Clause 34 states that providing false information in an attempt to impersonate carries a maximum penalty of 3 years in prison and/or a fine of 10,000. The Clause 38 states that unauthorised access to the Central Identities Data Repository, causing damaging to it or leaking the information stored on it carries a maximum penalty of 3 years in prison and/or a minimum fine or 100,000. The Clause 47 states that the complaints under this law must be tried under a Chief Metropolitan Magistrate or a Chief Judicial Magistrate, or a higher court. No court can recognise a complaint under this law unless filed by the UIDAI or a person authorised by it.[20]

Chapter VIII: Miscellaneous

The Clause 48 states that the central government may supersede the UIDAI for a period of up to 6 months, if it fails to performs its duties or due to a public emergency. The Clause 57 states that state or private agencies may use Aadhaar for verifying the identity of a person for any purpose.

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Aadhaar act 2016

Aadhaar Act, 2016 (Targeted Delivery of Financial and other Subsidies, benefits and services)

Most of the provisions of the Bill have been borrowed from the previous National Identification Authority of India Bill, 2010. The major difference is that the three-member committee called the Identity Review Committee of the previous bill was removed in the new bill.[18] Also, the section 8 of Aadhaar Act is significantly different from that of NIAI bill, 2010. While the NIAI bill allowed the authentication limited to the biometric match only with Yes/No option, the Aadhaar Act allows the requesting agency/person to ask for other information too, pertaining to the person’s identity.[19]

Chapter I: Preliminary

The Clause 2 (g) defines "biometric information" as photograph, finger print, iris scan, or "other such biological attributes" of an individual. The Clause 2 (k) defines "demographicinformation" as name, date of birth, address and "other relevant information" of an individual. It explicitly excludes race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history. The Clause 2 (v) defines "resident" as an individual who has resided in India for a period or periods amounting in all to 182 days or more in the 12 months immediately preceding the date of application for enrolment.[20]

Chapter II: Enrolment[

The Clause 3 (1) states that every resident is entitled to obtain an Aadhaar number by submitting their biometric and demographic information. The central government may however in future require other categories of individuals to enrol by releasing a notification. According to Clause 3 (2), at the time of registration the enrolling agency must inform the resident about the manner in which the data will be used, with whom it will be shared and procedure of access. The UIDAI will issue an Aadhaar number to the resident after verifying the data. According to Clause 4, it should be unique and random. The Clause 6 states that the UIDAI may require Aadhaar number holders to submit additional biometric and demographic information, or update the information in the future.[20] 1058/13797/48987

Chapter III: Authentication

The Clause 7 states that the central or state government may require a person to possess an Aadhaar number if he/she is receiving some subsidy. If they do not possess an Aadhaar number, they will be required to apply for other, in meantime the government will provide them the subsidy using an alternate mean of identification. According to Clause 8, UIDAI may perform verification of Aadhaar for other private and public agencies on request in exchange for a fee. The requesting must obtain the consent of the Aadhaar holder for verification, and inform him/her of nature of the information that will be shared upon verification. The Clause 8 (4) states that UIDAI may share identity information, but it cannot share the biometric information. The Clause 9 states that Aadhaar is not a proof of citizenship or domicile.[20]

Chapter IV: Unique Identification Authority of India

The Chapter IV details the functions and powers of the UIDAI. The Clause 23 (2) states that the UIDAI has the power to specify the demographic and biometric information that must be collected for registration. It can issue Aadhaar numbers to residents and perform verifications. It can also specify the subsidies and services for which Aadhaar will be required.[20]

The Clause 12 states that the UIDAI will consist of a chairperson, two part-time members and a chief executive officer. The Clause 13 states the chairperson and members must have experience and knowledge of at least 10 years in matters relating to technology, governance, law, development, economics, finance, management, public affairs or administration.[20]

Chapter V: Grants, Accounts and Audit and Annual Report[

The Clause 25 states that any fees collected and revenue generated by the UIDAI will be deposited in the Consolidated Fund of India. The Clause 27 (2) states that the UIDAI must submit an annual report to the central government detailing its activities of the past year, revenues and expenditures of the past year, and plans for the upcoming year.[20]

Chapter VI: Protection of Information

The Clause 28 (1) states that the UIDAI must ensure the security of identity information and authentication records. The authentication records has been as "record of the time of authentication and identity of the requesting entity and the response provided" in Clause 2 (d). The Clause 32 states that the UIDAI must maintain the authentication records for the specified period. The Aadhaar number holder may access his authentication records subject to regulation. The UIDAI is not required to maintain the record of the purpose of authentication.[20]

The Clause 33 (1) states that a District Judge or higher court may force the UIDAI to reveal a person's identity information, i.e. Aadhaar number, photograph and demographic information, and authentication records, but not the core biometric information. The Clause 33 (2) states that an official with the rank of Joint Secretary or higher may access a person's identity information including core biometric information, if the official has an order issued in the interest of national security by the central government.[20]

Chapter VII: Offences and Penalty

The Clause 34 states that providing false information in an attempt to impersonate carries a maximum penalty of 3 years in prison and/or a fine of 10,000. The Clause 38 states that unauthorised access to the Central Identities Data Repository, causing damaging to it or leaking the information stored on it carries a maximum penalty of 3 years in prison and/or a minimum fine or 100,000. The Clause 47 states that the complaints under this law must be tried under a Chief Metropolitan Magistrate or a Chief Judicial Magistrate, or a higher court. No court can recognise a complaint under this law unless filed by the UIDAI or a person authorised by it.[20]

Chapter VIII: Miscellaneous

The Clause 48 states that the central government may supersede the UIDAI for a period of up to 6 months, if it fails to performs its duties or due to a public emergency. The Clause 57 states that state or private agencies may use Aadhaar for verifying the identity of a person for any purpose.

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Madras HC quashes all land acquisitions since Sept 2013by TN Govt under three old State laws

 

n a verdict that is likely to have far-reaching implications, the Madras High Court on Wednesday effectively struck down Section 105A of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act), which had exempted certain State land acquisition acts from the purview of the 2013 Act.

By this provision, the Tamil Nadu government had exempted three State enactments from the application of the 2013 Act i.e. the Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978; Tamil Nadu Acquisition for Land for Industrial Purposes Act, 1997; and the Tamil Nadu Highways Act, 2001 ('State enactments').

However, the Bench of Justices S Manikumar and Subramonium Prasad has now found that through Section 105A, the Tamil Nadu Government cannot revive State enactments that were rendered void with the enactment of the 2013 Act. Following detailed submissions, the Court found that the above three State enactments had also become void following the introduction of the 2013 Act.

Consequently, the Court has quashed all land acquisitions made by the Tamil Nadu Government for public purposes under the three State acts after September 27, 2013, on which date the 2013 Act received presidential assent.

All the same, on practical considerations, the Bench clarified that the judgment would not apply to cases where the land so acquired has already been put to use. As stated in the judgment,

"In those lands where the purpose for which the land was acquired and to put to use, it will be impossible to return those lands to the land owners. Issuing any direction to the land owners, now would be unscrambling a scrambled egg. In such cases, we can only direct that the compensation and the rehabilitation must be strictly made in accordance with the New Land Acquisition Act...

... all the acquisitions made under the three impugned enactments made on or after 27.09.2013, are held to be illegal and quashed save those lands which have already been put to use and the purpose for which the land was acquired has been accomplished."

Case Background 

It may be noted that Section 105 of the 2013 Act exempts thirteen Central Government Acts from its application, in so far as the procedure to be followed for land acquisition is concerned. In the interest of transparency, the 2013 Act calls for more public consultation and social impact survey before the land acquisitions can be carried out.

However, the provisions of the 2013 Act concerning compensation, rehabilitation and resettlement would still apply even in respect of land acquisitions carried out under the exempted Acts.

Section 105A was also introduced on similar lines. The Bill introducing this provision received Presidential assent on January 1, 2015.

This provision was thereafter challenged by numerous petitioners. Inter alia, it was contended that Section 105A defeated the purpose of the 2013 Act, that it was manifestly arbitrary and discriminatory, that it was implemented without following mandatory procedure and that the president had given assent for the same without any application of mind.

Counsel appearing for the petitioners in the matter included Senior Advocates P Wilson, N Subramaniyan, KM Vijayan, Ajmal Khan, TV Ramanujan, S Subramaniam and Advocate Suhrith Parthasarathy.

Arguments defending the amendment were made by Advocate General Vijay Narayan for the State of Tamil Nadu and Additional Advocate General PH Arvindh Pandian for SIPCOT and TANGEDCO.

The conclusions arrived at by the Bench in the matter have been summarised below.

Section 105A cannot be used to revive dead statutes

The High Court found merit in the petitioners' submissions that Section 105A had attempted to revive statutes that were dead at the time of its introduction.

It was pointed out that the moment a new law comes into force, earlier laws would become void to the extent of repugnancy. Accordingly, with the enactment of the 2013 Act, earlier land acquisition law, including the three state enactments stood impliedly repealed. It was further highlighted that a dead statute could only be re-introduced by re-enacting it and sending it for Presidential assent.

The State had countered that the three State enactments were never rendered void since the amendment act saving them was deemed to have come into force on January 1, 2014 i.e. the date on which the 2013 Act came into force.

This being the case, it was argued that Article 254(2) would protect the three State enactments. Article 254(2) states that where there is a repugnancy between earlier central legislation and later State legislation on a subject in the concurrent list (including land acquisition), the later State law would prevail if it receives Presidential assent.

However, this argument was also challenged by the petitioners, who pointed out, inter alia, that the 2013 Act kicked in much earlier on September 27, 2013 (when the President gave his assent for the same).

In view of these submissions, the Bench held,

"... the Writ Petitioners before us ultimately succeed because, Article 254(1) by its operation rendered the impugned Tamil Nadu Legislations repugnant, and null and void, as on the date on which the New Act was made, i.e. 27.09.2013, the date of making of the New Act, as held in the case of State of Kerala v Maar AppraemKuri Co. (Supra)and therefore the impugned Acts do not survive.

By enacting Section 105-A of the New Act, the State of Tamil Nadu could not have revived the three state Acts, that had become repugnant as on 27.09.2013. In order to revive these acts, the State must re- enact these statutes, in accordance with Article 254(2) of theConstitution of India, and obtain the assent of the President.

Merely, by inserting Section 105-A and the 5th Schedule, in the new Act, these impugned enactments do not get revived. Since this had admittedly not been done, the Acts remain repugnant, and Article 254(1) renders them inoperative.

In view of the requirements of Article 254(2) of the Constitution of India, Section 105-A of the New Act, is virtually otiose. Since We have already held that Section 105-A has not revived the State Acts, the validity of Section 105-A per se, need not be examined by us."

Mandatory pre-conditions for enactment of Section 105A not satisfied

The petitioners also highlighted that Section 105A(2) itself laid down that a notification should be published within a year if any exemption was to be made under Section 105A(1).

The notification is intended to clarify that provisions concerning compensation and rehabilitation under the 2013 Act would not be diluted even with respect to land acquisitions carried out under the exempted Acts. Further, this notification would also have to be laid before the State Assembly for their approval under Section 105A (3). Without following this procedure, it was contended that Amendment Act introducing Section 105A was a still born Act. 

In this case, however, the Tamil Nadu Government only issued three Government Orders in December 2014. The State asserted that these Government Orders satisfied the condition of issuing notifications under Section 105A (2). Further, it was also argued by the State government that the issuance of such notification was only directory.

The Court, however, disagreed. It ruled,

"The provisions of Section 105A(2) and (3) are mandatory in view of the necessity of complying with these provisions. The State Government has failed to make the necessary notifications, as contemplated under 105A(2) and as such the provisions of Section 105A(2) have not been satisfied.

Since the notifications have not been made under sub-section (2) the requirement of sub-section (3) i.e. placing the draft notifications before the State Legislature has also obviously not been met.

We therefore hold, that the requirements of Section 105A(2) & (3) have not been satisfied, and as such the insertion of the enactments in the 5th Schedule of the new Act, was not done in accordance with law."

With these observations, the High Court allowed the writ petitions. However, the Court rejected the arguments made by the petitioners that the provision itself was arbitrary and discriminatory, and that the president had not applied his mind while giving his assent for the bill.

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Victims of Sexual Harassment predominantly Women; Centre opposes plea to make offence of Rape gender-neutral

 

The Central Government has informed the Delhi High Court that it is opposed to making the law pertaining to rape gender-neutral.

Defending the gender-specific rape law, the Centre has stated that the decision was taken in view of the fact that victims of sexual harassment in the country are predominantly women.

The statement was made in an affidavit filed by the Centre in a public interest litigation seeking to declare Sections 375, 376 of the Indian Penal Code as null, void and unconstitutional in view of Articles 14 and 21 of the Constitution of India.

The petitioner, advocate Sanjjivv Kkumar, had sought replacement of the above sections with gender-neutral sections as envisaged under the Criminal Law (Amendment) Ordinance, 2013.

The Central Government claimed that the decision to maintain status quo by keeping Section 375 gender-specific qua the perpetrator of the offence was taken after due deliberations at various levels with different stakeholders including women's groups. The affidavit reads,

"These sections have been enacted to protect and keep a check on the rising levels of sexual offences against women in India...Keeping in view the ambit of POCSO Act which covers all forms of sexual offences against minors and section 377 of the IPC, it was felt that existing definition of rape under section 375 should be left untouched."

The Centre also apprised the Court of the actions taken by it to implement the recommendations of the 172nd Report of the Law Commission.

Apart from suggesting various changes to Sections 376, 376A, and 376D for enhancement of sentence, and adding an explanation to Sections 376B-376D for defining sexual intercourse etc, the Law Commission had also recommended making Section 375 IPC gender-neutral.

It was submitted that after the receipt of the Report, various wide-ranging consultations were held and subsequently, a high powered committee was formed. Finally, a draft Criminal Law (Amendment) Bill, 2012 was finalized. The Bill was approved by the Cabinet and presented before the Lok Sabha. It was then referred to a Parliamentary Standing Committee.

However, while the Bill was still pending before the Standing Committee, a committee headed by Justice JS Verma was constituted after the December 2012 Delhi gang rape.

In its Report dated January 23, 2013, the Verma Committee agreed with most of the provisions in the 2012 Bill, resulting in a broad convergence of the two Reports on various issues including the issue of gender-neutral rape laws. This ultimately culminated in the 2013 Criminal Ordinance.

Subsequently, after considering the recommendations of the Justice Verma Committee, the Parliamentary Standing Committee on Home Affairs, discussions with various stakeholders and women's groups etc, it was decided that the section under the Indian Penal Code relating to sexual offences should not be kept gender-neutral qua the perpetrator of the offence. The pre-2013 Ordinance status should be restored, the Central Government concluded.

Thus, a draft replacement Bill, namely the Criminal Law (Amendment) Bill, 2013, was prepared with modifications of "consequential nature" such as making rape law gender-specific qua a male perpetrator, the Centre informed the High Court.

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Plea filed in Delhi HC to declare marital rape as ground for divorce.

 A petition has been filed before the Delhi High Court seeking a direction to the Central Government to declare marital rape as a ground for divorce.

Presently, marital rape is not a ground for divorce under the Hindu Marriage Act, 1955, Muslim Personal Law (Shariat) Application Act, 1937 or Special Marriage Act, 1954.

The public interest litigation filed by advocate Anuja Kapur also seeks a direction to the Central Government to frame clear guidelines for the registration of the cases related to marital rape.

The petitioner claims that the plea was moved pursuant to a Delhi Government report to the High Court, stating that marital rape was already criminalized as cruelty under Section 498A of the IPC.

To highlight the menace, the petitioner relies on several studies to quote the statistics around marital rape.

"..18 out of every 100 men across India believe that a husband has the right to get angry and reprimand his wife if she refuses to have sexual intercourse with her husband. At the state level, 43% men in Andhra Pradesh, 42.6% in Telangana, 29.5% in Mizoram, 21.75 in J&K, 20.3% in West Bengal and 19.9% in Karnataka felt the same way.

During the National Family Health Survey men respondents were asked if they agreed to the fact that a husband is justified in hitting or beating his wife if she refuses to have sex with him. Nine out of every 100 men across India agreed that a husband is justified in beating his wife if she refuses to have sex with him."

It further adds,

"Five out of every 100 women in India reported that their husband had physically forced them to have sexual intercourse with him even when they didn't want it. At the state level 11.4% women in Bihar, 10.6% in Manipur, 9% in Tripura, 7.4% in West Bengal, 7.3% in Haryana and 7.1% in Arunachal Pradesh reported that they were physically forced by their husbands to have sexual intercourse with them even when they did not want to."

The petition thus argues that marital rape is no less an offence than murder, culpable homicide or rape per se and has long-lasting physical and psychological consequences for women.

"It denigrates the honor and dignity of a human being, and reduces her to a chattel to be utilized for one’s self convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury.", it is submitted.

It is claimed that apart from suffering physical injuries, marital rape survivors often report flashback, sexual dysfunction and emotional pain, even after years of violence.

The petition further submits that since marital rape is neither a crime nor a context in cases of sexual assault, sexual abuse or aggravated assault, FIRs are not registered by Police at the insistence of a victim wife.

"..rather, it is being compromised (the complaint) by the Police Authorities to maintain the sanity of the marriage between the victim and the Husband."

Therefore, the petitioner seeks a direction to the frame appropriate laws and by-laws related to marital rape as a ground for divorce and to also fix appropriate punishment or penalties for violation of such law.

The matter is likely to be taken up in the coming days.

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90-Day Period for Filing Claim with Resolution Professional – Mandatory or Directory?

 

The main objective of the corporate insolvency resolution process (CIRP) under the Insolvency and Bankruptcy Code, 2016 (Code) was to protect the interest of creditors of a company, while also ensuring that the insolvency resolution process is completed in a time-bound manner. 

In accordance with section 15(1)(c) of the Code read with regulation 6(2)(c) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations), once the application for initiation of the CIRP is admitted by the National Company Law Tribunal (NCLT), a public announcement is required to be released by the IRP for inviting claims.

The public announcement is required to provide for the last date for submission of such claims from the date of the appointment of the IRP. Further, regulations 7, 8, 9 and 9A of the CIRP Regulations provide for the form and manner in which claims have to be submitted by various creditors. 

Regulation 12(2) of the CIRP Regulations provides that a creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit the claim with proof to the IRP or the RP, as the case may be, on or before the ninetieth day of the insolvency commencement date. This deadline of 90 days was introduced by way of an amendment, with effect from July 2018. Prior to the amendment, Regulation 12 (2) read as follows:

A creditor, who failed to submit proof of claim within the time stipulated in the public announcement, may submit such proof to the interim resolution professional or the resolution professional, as the case may be, till the approval of a resolution plan by the committee.” 

Restricting the time for submission of claims was necessary to ensure that the purpose of the CIRP under the Code was not defeated, i.e. to ensure a time-bound insolvency resolution process. The Code itself provides no time period for submission of claims. This led to creditor/s submitting their claims at the fag end of the resolution process which further led to the delay in the completion of the CIRP. In some cases, the last-minute filings also led to disputes being filed at the eleventh-hour before the concerned NCLT, over the inclusion/acceptance of such claims. 

Although the introduction of a fixed timeline for submission of claims was more than welcome, the amended Regulation 12 (2) seems to have raised more issues than it purports to resolve. The amended Regulation 12 (2) is silent in regard to the status of creditors who have missed the deadline and are desirous of filing their claims.

Therefore, the question that arises is whether the 90 day period referred to in Regulation 12 (2) a mandatory timeline which had to be adhered to, or could any delay beyond 90 days be condoned by either the IRP/RP or the NCLT? 

In the recent orders/judgements, the Hon’ble Tribunals have condoned the delay even after the time period of ninety days is elapsed, citing that the amended Regulation 12 (2) is directory.

In the matter of Twenty-First Century Wire Roads Ltd., an application was filed by one AMA Agencies Pvt. Ltd. before the Hon’ble Principal Bench of the NCLT, New Delhi for condonation of delay in filing their claim. The insolvency commencement date was 12th September 2018 and the claim was filed by AMA Agencies on 5th  March 2019.  When the application was being heard, the CoC was still in the process of considering the resolution plans submitted. Therefore, the Hon’ble NCLT was pleased to condone the delay and direct the RP to consider the claim.  A similar order was passed in another application for condonation filed in the same matter.

The Principal Bench of the NCLT, New Delhi, went one step further in the matter of Edelweiss Asset Reconstruction Co. Pvt. Ltd.  v.  Adel Landmarks Ltd. and held as follows:

“The rejection of claim on the ground of delay is not sustainable because the provisions has been held to be directory….We wish to make it clear that all the Resolution Professionals shall make a note of these repeated orders passed by NCLT clarifying that claim of an applicant, like the present one, could not be rejected on the ground o delay as the provision has been held to be directory.” 

Interestingly, in State Bank of India v. ARGL Ltd. the Principal Bench of the Hon’ble NCLT, New Delhi, while considering an application of similar nature filed by Central Board of Goods and Service Tax Department indicated that it was irrelevant whether the claim is considered or not, since the government dues would always be reflected in the books of accounts of the corporate debtor and the RP/IPR would be required to take cognizance of the dues as per the books of accounts. Therefore, the application was allowed. The relevant portion of the order is reproduced hereinbelow: 

“It is true that the regulation 12(2) after amendment has granted liberty to a creditor who has failed to submit the claim with the proof within the time stipulated in the public announcement and such a claimant could submit the claim with proof to the IRP/RP on or before 90th day of Insolvency commencement date. The aforesaid time obviously has expired as the CIR Process and in the present matter was commenced on 16.03.2018 and the claim were initially invited by fixing the last date as 30.03.2018. It is strange situation which is adopted by the RP because in the books of accounts the governmental dues are always reflected. It is nowhere stated as to how the claims which are to be filed alone are to be collated in terms of Section 21. First of all, as a matter of fact as the first step the IRP/RP has to prepare the list in accordance with the books of accounts and then invite the claims otherwise the dues reflected in the books of accounts would be rendered completely meaningless. It is only in case there is any discrepancy in the books of accounts that the claim needs to be modified or additions are required to be made.

Therefore, we allow the application and direct the IRP/RP to collate the claim of the Central Board of Goods and Service Tax the needful shall be done within three days.”

While the orders of the Hon’ble Principal Bench of the NCLT come as a relief to those who have missed deadlines for filing the claim, it is respectfully submitted that if the RP is required to accept all claims, irrespective of amount of delay or reason of delay, and without intervention/condonation order of the concerned NCLT, the timeline provided under the amended Regulation 12 (2) would be rendered nugatory. 

In order to meet the objectives of a speedy insolvency resolution process, it is humbly recommended by the author that the law be amended to introduce at least one of the following:

  1. a mandatory time period for filing of claims; or 
  2. a mechanism which requires the creditor to approach the concerned NCLT for condonation of the claim on sufficient cause for delay being shown; or
  3. a discretionary power to be bestowed upon the RP to condone delays in filing the claim on being satisfied that there has been sufficient cause for the delay. 

Till such an amendment is introduced, the Resolution Professionals have no option but to consider every claim put to them, till the stage of acceptance of resolution plan by the CoC.

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Have Social Media companies helped TN Police

 

Have Social Media companies helped TN Police combat Cyber Crimes? Affidavit in Madras HC has answers
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A plea filed last year to link Aadhaar with email has effectively culminated in the Madras High Court coordinating efforts by law enforcement agencies and major social media intermediary companies to find more effective ways to curb online crime.

Social media giants WhatsApp, Twitter, Facebook, Google and YouTube were impleaded in the case last year. Further, during a hearing held on Thursday, the High Court allowed NGO, Internet Freedom Foundation (IFF) to implead itself in the case.

The social media companies also sought time to reply to a common report filed by the State authorities in Tamil Nadu. The Bench, in turn, directed that their replies be filed by July 17.  


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RERA - Public Notice

 Government of India has enacted the Real Estate (Regulation and Development) Act, 2016 on 26/3/2016. Government of Karnataka has notified Karnataka Real Estate (Regulation and Development) Rules-2017 in the State Gazette on 11/7/2017. The Karnataka Real Estate Regulatory Authority (RERA) has been set up. In accordance with the RERA Act section 3(1), all ongoing projects were required to be registered by 31 July 2017 since the Act came into force on 1 May 2017. The section 3(1) of the RERA Act reads thus: “Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act”   


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RERA penalty for non registration

 Under penalties for non-compliance with the Act,RERA 2016 recommends imprisonment for a term which can be extended up to three years or a fine which may extend up to 10% of the cost estimated of the real estate project, or both. However, most states have added a clause of compounding of offence to avoid imprisonment.  

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RERA impact on GST

 The government has made buying homes easier by slashing the Goods and Services Tax (GST) tax on under-construction properties. Rates have been cut from 8% to 1% for affordable homes and from 12% to 5% for regular units. Moreover, the size of what constitutes an affordable home has been too been revised. A 60 sq. mt unit in a metro and 90 sq. mt home in a non-metro, valued at up to Rs 45 lakh, will now fall under affordable housing.

The government, however, has also eliminated input tax  ..

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RERA Developer wise Complaint List

RERA Project Wise Complaint List  - Top 10 Projects are in the list as on date 30.06.2019.


1.  Not Found or Not Yet Registered.

2. ITHACA ESTATES PRIVATE LIMITED

3.  PARKWAY HOMES LLP 

4.  SJR PRIMECORPORATION PVT LTD 

5.  UNISHIRE BUILTECH LLP 

6.  SJR PRIME CORPORATION PRIVATE LIMITED 

7.  MANTRI DEVELOPERS PRIVATE LIMITED 

8.  SOBHA LIMITED 

9.  NITESH HOUSING DEVELOPERS PRIVATE LIMITED 

10.  GOLDEN GATE PROPERTIES LTD 


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RERA Project Wise Complaint List

 RERA Project Wise Complaint List  - Top 10 Projects are in the list as on date 30.06.2019.

  1.  SKYLARK ITHACA 
  2.  NOT FOUND  or Not Yet Registered
  3.  PARKWAY HOMES 
  4.  UNISHIRE SPACIO 
  5.  SJR PRIMECORPORATION PVT LTD PALAZZACITY 
  6.  BLUE WATERS PHASE 1 
  7.  HOYSALA HABITAT 
  8.  SJR PRIMECORPOATION PVT LTD BLUE WATER PH2 
  9.  MANTRI MANYATA LITHOS 
  10.  MANTRI WEBCITY2A 


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IMA ponzi scam

 

IMA ponzi scam: ED attaches ₹209-cr assets under PMLA; summons K'taka minister.

 

Bengaluru/ New Delhi: The ED Friday said it has attached assets worth ₹209 crore, including 20 immovable properties and bank deposits, in its money laundering probe into the alleged IMA group ponzi scam of Karnataka.

Thousands of depositors are said to have been duped in alleged scam.

The Enforcement Directorate (ED) has also summoned Karnataka Food and Civil Supplies and Wakf Department Minister B Z Zameer Ahmed Khan for questioning in the case on 5 July, officials said.

The central agency said its Bengaluru zonal office has issued a provisional order under the Prevention of Money Laundering Act (PMLA) for attachment of immovable assets worth ₹197 crore and about ₹12 crore deposits in bank accounts.

While the minister has denied any business dealings with the group or its absconding main promoter Mohammed Mansoor Khan, except sale of a Bengaluru-based property, the agency wants to question Zameer Khan about his links with the company and its operations, they said.

Madras HC directs Cognizant

The Madras High Court on Tuesday dismissed writ petitions filed by Cognizant Technology Solutions India Private Limited (Cognizant) and two of its foreign shareholders - Cognizant (Mauritius) Limited and New Jersey-based Cognizant Technology Solutions Corporation - over tax disputes relating to the buy-back of shares.

Justice K Kalyanasundaram dismissed the petitions on grounds of maintainability, while observing that,

"...the Hon'ble Apex Court and the High Courts have consistently held that the assessees before approaching the High Court by way of filing Writ Petitions invoking Article 226 of the Constitution of India, have to exhaust the remedies provided under the IT Act..."

The dispute at hand emanated from the buy back of shares by Cognizant from its foreign shareholders. The petitioners submitted that the subsidiary company had decided to buy back the shares since it had substantial cash surplus in 2013, for which there was no immediate requirement in the company. Consequently, Cognizant identified buy-back of shares under Section 77A of the Companies Act, 1956. 

The Maratha Reservation judgment

 

The Bombay High Court upheld the State government’s legislation providing for reservation for the Maratha community.

A Division Bench of Justices Bharati Dangre and Ranjit More refused to quash the Maharashtra State Reservation for Seats for Admission in Educational Institutions in the State and for appointments in the public services and posts under the State (for Socially and Educationally Backward Classes) [SEBC Act], 2018. 

Background

In July 2014, the Maharashtra government had passed an ordinance providing for 16 percent reservation for the Maratha community. The same was challenged before the Bombay High Court, which passed an interim order staying the implementation of the ordinance. This order was then challenged before the Supreme Court, which ultimately dismissed the challenge.

During the pendency of the matter before the High Court, the State government passed the Educationally and Socially Backward Category (ESBC) Act providing for reservation for the Maratha community.

Digitised property cards to streamline deals, nix fraud

 BENGALURU: Here’s a quick heads-up for property owners and squatters: Real estate transactions will soon be less susceptible to fraud and encroachment will not be quite such a breeze.
The authorities have prepared digitised Urban Property Ownership Record (UPOR) cards/certificates — the first legal ownership documents issued by the government to property holders — for 1,500 of 5,000 properties surveyed in a pilot project in Pattabhiramanagar ward.
Officials said the project’s security features will effectively deter rip-offs in property transactions while preempting illegal occupation and unsanctioned construction. The government expects to distribute the cards in a year’s time, after it brings all 20 lakh properties in Bengaluru under the UPOR ambit.
Unlike sale deeds and khatas — which are only ‘deemedto-be property ownership documents’ — UPOR cards will have exhaustive details of properties, including plot size, built-up area and number of floors, as also spatial information such as boundary point coordinates. It will also comprise particulars of property rights: ownership, mortgage and lease, encumbrances, easements (rights to cross someone else’s land for a given purpose), transaction history and land/ building sketches.
While the card’s primary benefit is to streamline property transactions, the sketches will help prevent encroachment, officials said.
Though the cards will not be generated for government properties, forest land or lake beds, if someone’s property does not have a UPOR card, it would mean that it is either an encroachment of government land or is on a lake bed, said Munish Moudgil, commissioner, survey, settlement and land records.  

How much compensation under RERA?

RERA was enacted for quick redressal of complaints against the builders but compensation under RERA is a concern for many buyers.

In a bid to protect the interest of home buyers as well as weed out non-serious and unscrupulous players from the market, the Real Estate (Regulation and Development) Act, 2016 (RERA) has proposed heavy penalties on builders who will henceforth either delay their projects or won’t comply with RERA norms.

For instance, RERA recommends imprisonment for a term which may extend up to three years, or fine which may extend up to 10% of the estimated cost of the real estate project, or both, in case of non-compliance with the Act. Moreover, in case of any structural defects arising within five years of handing over the possession of project to buyers, developers will be liable to rectify such defects without further charge.

Under Section 18 of the Act there are two cases under which the builder is liable to return the money of the buyer.

One case is if builder is unable to give possession as per agreement or discontinuous his business then the builder is liable to pay interest including compensation. What section 18 contemplates that there is no separate compensation awarded to the buyer the interest component includes compensation. In case buyer opts for possession then if there is delay in possession then the buyer will get interest of delay. Compensation under RERA is also there in section 18(2) and 18(3) in which but 18(2) talks about defect in title of land the buyer will be entitled to compensation and under 18(3) also any other violation execept mentioned above. 

    

Honour Rights Of Mentally Ill Persons: PIL In Delhi HC For Implementation Of Mental Healthcare Act, 2017

 Indian Legal Systems refers to the system of law operative in India. In the ancient days, there was a distinct tradition of law, which had a historically independent school of legal theory and practice. Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India.[1] The Arthashastra dating from 400 BC and the Manusmriti from 100 AD were influential treatises in India, texts that were considered authoritative legal guidance.[2] Manu's central philosophy was tolerance and pluralism and was cited across Southeast Asia.[2] During the Islamic rule, Sharia law came to India, but that was applicable mainly to the Muslim population. When India became part of the British Empire, there was a break in the tradition, and Hindu and Islamic laws were supplanted by the common law. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.[2] Much of the contemporary Indian Laws are largely based on English Common Law, a system of law based on recorded judicial precedents and shows substantial European and American influence and many of the legislations introduced by the British are still operative. Therefore, the roots of most of the legislations in respect of persons with mental disorders (PMI) can be traced to the British periods. 

 here is a dynamic relationship between the concept of mental illness, the treatment of the mentally ill and the law.[3] As Rappeport has noted, for the psychiatrists the court is “another house … with its different motives, goals and rules of conduct.”[4] While the psychiatrist is concerned primarily with the diagnosis of mental disorders and the welfare of the patient, the court is often mainly concerned with determination of competency, dangerousness, diminished responsibility and/or the welfare of society.[5] Therefore, in India also, most of the earlier legislations in respect of PMI were concerned with these aspects. However, legislations drafted after eighties tend to give some stress on the rights of PMI also.